If Monday’s decision in the Margot Bentley case demonstrates anything, it’s how the law and its exacting interpretation can change the course of one’s life, or in Margot Bentley’s case, one’s death.

Bentley is the 82-year-old Alzheimer’s patient now in an Abbotsford care home. Her family, who brought a suit against the home, insisted Bentley is being kept alive by the home care staff despite instructions in a “living will” Bentley made out in 1991 asking that she was to receive “no nourishment or liquids” if there was “no reasonable expectation of recovery from extreme physical or mental disability.”

In 1999, when she was diagnosed with Alzheimer’s, she reiterated that request to her family repeatedly.

Despite her condition — she is now in the final stage of Alzheimer’s — staff continue to spoon-feed her, arguing that her ingestion of food signals consent on Bentley’s part to being fed.

The family argued in court that her taking in of food is a reflex prompted by home care staff pressing the spoons against her lips.

On such distinctions, Margot Bentley’s life, and death, hung in the balance.

B.C. Supreme Court Justice Bruce Greyell rejected the family’s position in Monday’s decision and ruled that the care and feeding continue.

As for the feeding itself, he found it was “clearly not settled law that a substitute decision maker has authority to refuse the provision of oral nutrition and hydration, such as prompting with a spoon or a glass, on behalf of an adult who is incapable of making that decision.”

His decision also seemed to rest on how he defined the nature of care Bentley was receiving at the home.

Was being fed with a spoon and glass “health care” or was it basic, humane “personal care” that every patient deserves?

If it were health care, it would be governed by B.C.’s health care legislation, which stipulates you can refuse such care if you are capable, even if it might result in your death.

Justice Greyell, however, found that the spoon-feeding Bentley was receiving was “personal care” and that her “statement of wishes do not constitute clear refusal to consent to providing nourishment by prompting with a spoon or glass.”

The distinction between personal care and health care might seem a fine one to the lay person — and as a lay person, it certainly is to me — but it is one that could have significant effect on existing living wills and advanced agreements.

“That is a significant issue,” said Kieran Bridge, the lawyer who represented the Bentley family. “If I were a lawyer, I’d be very concerned about what standard I’d be held to when I’m drafting one of these documents. It appears to be a very, very high threshold of clarity that is required, and if I were the person who drafted or has a living will drafted for me by a lawyer, I would be very concerned about whether if it were sufficiently clear.”

Simon Fraser University Prof. Rob Gordon, one of the drafters of the provincial health care consent and adult guardianship legislation that came into force in 2000, advised that anyone with a pre-existing advance directive or living will should get themselves to a lawyer or notary to make sure the intent of their wishes are made absolutely clear.

“Basically, what people need to do now if they have advanced directives or living wills or anything like it that is not consistent with the new legislation, is they need to go to lawyers and notaries and other people who can help them, and redraft them and make sure that all the I’s are dotted and all the T’s are crossed, because I can foresee more situations where these issues arise and the people responsible for providing care are not going to follow the wishes because (the instructions) are not absolutely crystal clear, or there’s nobody who is capable of making the substitute decisions for them.”

Gordon suggested that anyone who is considering drawing up an advanced directive should go the provincial Ministry of Justice website and look at the models of Representation Agreements.

“Anybody contemplating that should use one of those model agreements because they are quite clear ... But these are not agreements that you could or should send out by yourself,” he said. “Your safe bet is to go to a lawyer or a notary and have them help you prepare it.”

In such a Representation Agreement, Gordon said, a person can stipulate exactly what kind of care they can be given or the kind of care they wish held back, such as spoon-feeding.

“What people need to do is to ensure they have a properly executed and a clear Representation Agreement that covers off all areas of intervention that they might encounter, especially at the end of life.”

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